The following papers numbered 1 to 15 were read on this motion by defendant, St. John's University, for an order, pursuant to CPLR 3212, granting summary judgment dismissing the plaintiff's complaint:

Papers Numbered

Notice of Motion-Affidavits-Memo of Law................1 - 8

Affirmation in Opposition to Motion....................9 - 12

Reply Affirmation.....................................13 - 15

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This is an action for damages for personal injuries sustained by plaintiff, Lisa Gale, on June 2, 2010, when she fell off of a ladder as a result of allegedly being struck by a portion of a metal drop ceiling grid in the rest room of the Campus Center Building on the Staten Island campus of St. John's University. At the time of the accident, the plaintiff was removing and replacing stained ceiling tiles as part of her job duties for her employer, Total Maintenance Systems.

Plaintiff commenced an action against St. John's University by filing a summons and complaint on February 25, 2011. In her complaint, the plaintiff alleged that the defendant was negligent [*2]in failing to maintain its premises in a safe condition and despite having actual or constructive knowledge of a dangerous or defective condition, in permitting defective and deteriorated ceiling tiles to exist at the premises and in allowing the ceiling to remain in a deteriorated condition. In her second supplemental verified bill of particulars, the plaintiff states that the accident occurred as a result of a leaking roof that allowed water to damage the track and tiles in the men's bathroom of the Campus Center Building at St. John's University. Plaintiff claims that the defendants had actual and constructive notice of the hazardous condition in that the condition existed for such period of time that defendants, in the exercise of due care, should have recognized and remedied it. Plaintiff contends that as a result of the negligence of the defendant in failing to maintain the ceiling in a safe and proper condition, plaintiff sustained serious injuries including a cervical and lumbar derangement and a left knee meniscal injury.

Issue was joined by service of defendant's verified answer with affirmative defenses on April 18, 2011. Plaintiff filed a Note of Issue and Certificate of Readiness dated April 26, 2012 stating that all discovery including physical examinations of the plaintiff had been completed. However, although depositions of the parties were completed, the plaintiff failed to appear for a court ordered independent medical examination. On June 26, 2012, Justice Ritholtz so ordered a stipulation which stated that plaintiff's IME was to be completed by July 14, 2012 and if not so completed that "plaintiff shall be precluded from offering testimony on the issue of damages at the trial of the action."

Counsel for defendant now moves for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that the admissible evidence establishes that at the time of plaintiff's alleged accident, St. John's University, as owner of the premises where the accident occurred, did not create and had no notice, either actual or constructive, of the alleged condition that contributed to the plaintiff's accident. Defendant also states that as the plaintiff was injured while working for a maintenance company she cannot make a claim for an injury suffered from the condition she was hired to remedy or hazards inherent in remedying the condition. Counsel also states that as plaintiff has been precluded from offering any evidence on the issue of damages for her failure to appear for an independent medical examination, that the plaintiff cannot make a prima facie case of negligence. [*3]

In support of the motion, defendant submits the affidavit of counsel, Melissa Waters, Esq., as well as a copy of the transcripts of the examinations before trial of plaintiff, Lisa Gale, and defendant St. John's University by Darren Deans, Director of Facilities.

In her examination before trial, taken on October 26, 2011, Ms. Gale, age 46, testified that on the date of the accident, June 2, 2010, she was employed as a day porter with Total Maintenance Solutions (TMS). Her duties included checking and stocking bathrooms and mopping spills as well as changing light bulbs and ceiling tile. She stated that on the day of the accident her duties were "to change ceiling tile and light bulbs as needed in the Campus Center." When asked how she knew what tiles to change she stated, "you went to the buildings that you knew always needed to be changed because of rain. The Campus Center was one of our buildings that every time it rained, the ceiling tile became stained. Every time it rained heavy, the ceiling tile would collapse in the Campus Center men's room." She also stated that TMS inspected the ceiling tiles and kept a list of the tiles that needed to be replaced due to leaks. She has been replacing ceiling tiles for six months prior to the accident. She stated that her orders were to replace any tiles that appeared to be stained. She stated that from 2009-2010 she personally observed and replaced ceiling tiles that collapsed after it rained more than 12 times. The St. John's security office would make complaints regarding the tiles to TMS and TMS had the responsibility of changing the tiles. She used an eight foot aluminum ladder owned by St. John's to change the tiles. The tiles, which she described as light had to be cut with a box cutter to fit into the metal grid that was suspended from the ceiling. She would use the old tile as a template to cut the new tile. She stated that on the date of the accident she was replacing ceiling tiles in the bathroom that were both stained and wet when a piece of the metal trim fell on her head and startled her causing her to fall off the ladder. At the time she was on the fourth rung of the ladder.

The plaintiff testified that she fell on her left side hitting her left hip, left knee, and left shoulder on the floor. She stated that she did not know why the trim fell but that the ceiling was in poor condition. She stated, however, that she never complained to anyone about that particular piece of trim before and she never heard of anyone having experiences with metal trim dislodging prior to the accident. In addition, she stated that she had replaced the same tiles two and a half weeks prior to the accident and did not have any trouble at that time with the grid or trim work that held up the ceiling tile. After [*4]she fell was first seen by a school nurse and then left the scene in an ambulance which transported her to the emergency room at Richmond University Hospital.

on November 18, 2011, Darren Deans, Director of Facilities for St. John's University testified at an examination before trial. He stated that the Manager of Facilities at the Staten Island Campus in 2010 was Ram Paray. He also stated that Debra Penya a facilities coordinator was employed by TMS. Mr Deans stated that he was present on the Staten Island Campus on the date of the plaintiff's accident. He stated that he was talking to Debra Penya at the time that a TMS worker came over to inform her that Lisa Gale had been involved in an accident. He walked over to the men's room where the accident occurred but stayed in the doorway. He observed the plaintiff on the floor being attended to by Public Safety. He did not observe any ceiling bars missing or falling down. He did not observe leaks or other damage to the ceiling. He stated that he was never made aware of leaks in the ceiling of the mens room where the plaintiff had her accident.

In support of the motion, counsel for St. John's argues that plaintiff cannot establish that St. John's breached its duty of care in the absence of evidence that St John's created, or had actual or constructive notice of a defective condition at the premises. Counsel states that plaintiff testified that she herself had replaced the same tile she was in the process of replacing dozens of times including as recently as two weeks prior to the accident without incident and without any complaints having been made regarding the metal trim by herself or anyone else. In addition, the defendant argues that there was no proof presented that anyone from St. John's had been given actual notice of the allegedly defective grid and that there was no proof as to how long the defective condition existed prior to the plaintiff's accident. Counsel argues that the defect was not visible and apparent and was not discoverable upon reasonable inspection.

Further, counsel argues that the plaintiff cannot recover for an injury she sustained from a condition or defect that she was hired to remedy. Here the plaintiff was injured in the course of replacing a stained or wet ceiling tile which was the condition she was remedying as part of the scope of her employment. Citing Waiters v Northern Trust Co. Of New York, 29 AD3d 325 [1st Dept. 2006] counsel states that the courts have held that maintenance worker has no claim for damages for injuries sustained from a dangerous condition that she was hired to remedy. Further counsel argues that the employers duty to [*5]provide a safe workplace does not extend to hazards which are part of or inherent in the very work which the employee is to perform (citing Consalvo v City of New York 53 AD3d 521 [2d Dept. 2008]; Imtanios v Sachs, 44 AD3d 383 [1st Dept. 200]; Jackson v Board of Education, 30 AD3d 5 [1st Dept. 2006]).

Lastly, plaintiff argues that because the plaintiff failed to attend an IME she is precluded, by a prior order of this Court, from introducing testimony regarding damages. As such counsel argues, the plaintiff is prevented from establishing a prima facie case (citing Calder v Cofta, 49 AD3d 484[2d Dept. 2008]; Koslosky v Khorramian, 31 AD3d 16 [2d Dept. 2006]; DuValle v Swan Lake Resort Hotel LLC, 26 AD3d 616 [3d Dept. 2006]).

In opposition, plaintiff asserts that the defendant has failed to make a prima facie case in that they have only submitted an affirmation by counsel and have not submitted an affidavit from the individual who was deposed in this action on its behalf or from any current employee or anyone with personal knowledge of this matter. Counsel states that the defendant has not produced any credible or legally sufficient evidence to prove that St. John's did not have either actual or constructive notice of the condition of the bathroom floor. Counsel states that defendant had notice of the slippery recurring condition in the bathroom. Counsel also states that defendant was aware of the recurring condition of leaks in the ceiling of the bathroom in question. Counsel submits an affirmation from the plaintiff dated September 30, 2012. In her affidavit the plaintiff states that on the date of the accident she was changing drop ceiling tiles in the men's room of the Campus center Building. She states that this particular bathroom had a roof that constantly leaked and damaged the ceiling tiles inside. She states that the leak was continuous and she changed the tiles in the room frequently because of the water damage. She states that while standing on the ladder the grid in the ceiling became loose because it had been damaged by the water leak. She states that she had made verbal complaints to the personnel at St. John's and they were aware of the ongoing leak.

A movant for summary judgment must make a prima facie showing of entitlement by demonstrating that there are no material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once the movant satisfies this burden, then the burden shifts to the opposing party to present evidence in admissible form raising a triable issue of material fact (see Zuckerman v City of NY, 49 NY2d 557 [1980]). All reasonable inferences will be drawn in favor of the non-moving party (see Dauman Displays v Masturzo, 168 AD2d 204 (1st Dept. 1990). "Where [*6]the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied" (Daliendo v Johnson, 147 AD2d 312 [2d Dept. 1989]).

Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition, and the defendant's reply thereto, this court finds that the evidence submitted by the defendant was sufficient to demonstrate, prima facie, that the defendant did not have constructive notice of defective condition of the metal grid prior to the plaintiff's accident.

An owner of premises cannot be held liable for injuries caused by an allegedly defective condition unless the plaintiff establishes that the owner either created or had actual or constructive notice of the condition (see Betz v Daniel Conti, Inc., 69 AD3d 545 [2d Dept. 2010]; Roy v City of New York, 65 AD3d 1030 [2d Dept. 2009];Curiale v. Sharrotts Woods, Inc., 9 AD3d 473 [2d Dept. 2003] citing Gordon v American Museum of Natural History, 67 NY2d 836[1986]). To constitute constructive notice, the defect must be visible and apparent, and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it (see Gordon v American Museum of Natural History, supra; Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798 [2d Dept. 2003]). Moreover, constructive notice will not be imputed where a defect is latent and would not be discoverable upon reasonable inspection (see Lee v Bethel First Pentecostal Church of Am., supra; Rapino v City of New York, 299 AD2d 470 [2d Dept. 2002]).

Here, St. John's University made a prima facie showing of entitlement to summary judgment by submitting evidence which established that they neither created nor had actual or constructive notice of the latent defect which caused the suspended ceiling grid to detach from the ceiling (see Curiale v. Sharrotts Woods, Inc., supra). The admissible evidence submitted by the defendant, including the deposition testimony of the plaintiff and Mr. Deans, showed that there was no evidence that defendant had either actual or constructive notice of any defect in the ceiling grid. Mr. Deans testified that he had not been notified of the condition and the plaintiff herself testified that she had changed stained ceiling tiles in that area several times, the last time being two weeks prior to the accident and she had not seen any defect in the grid. According to the deposition testimony, the defect in the grid was not visible or apparent. Although it is clear that there was a recurring leaking condition which caused the tiles to become stained and wet, there was insufficient proof that the grid became loose as a result of the leaking condition and no proof that the defendant should have [*7]been aware that the grid was in a hazardous condition. Here, the defect was latent in that it was above the ceiling tiles and does not appear to have been discoverable by reasonable inspection as the plaintiff herself did not see any evidence of the deteriorated or loosened grid when she changed the tiles in that location two and a half weeks prior to the accident. She testified that she did not know why the grid fell and she did not make a complaint regarding the grid at any time prior to the accident (see Lal v Ching Po Ng, 33 AD3d 668 [2d Dept. 2006]).

In opposition to the motion, the plaintiff failed to raise a triable issue of fact as to whether the defendant created or had actual or constructive notice of the condition that caused her to fall from the ladder.

Further, in opposition to the motion, the plaintiff did not address her failure to attend an independent medical examination. Pursuant to the order of Justice Ritholtz, dated June 26, 2012, plaintiff was to attend an IME by defendant's designated physician prior to July 14, 2012 or be precluded from offering testimony with regard to damages at the trial of the action. Here, defendant affirms that the plaintiff failed to attend such IME and the plaintiff does not offer any excuse for her default in complying with the court order. Therefore, the conditional preclusion language in the parties' so-ordered stipulation became absolute upon the plaintiffs' failure to comply with its terms (see Koslosky v Khorramian, 31 AD3d 716 [2d Dept. 2006]). As the order precluding the plaintiff from presenting any evidence of damages prevents her from establishing a prima facie case, the defendant's motion for summary dismissing the complaint is granted (see Wei Hong Hu v Sadiqi, 83 AD3d 820[2d Dept. 2011]; Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2d Dept. 2009]; Calder v Cofta, 49 AD3d 484 [2d Dept. 2008]; Echevarria v. Pathmark Stores, Inc., 7 AD3d 750 [2d Dept. 2004]).

Accordingly, based upon the foregoing, it is hereby

ORDERED, that the defendant's motion for summary judgment is granted and the plaintiff's complaint is dismissed.

The clerk is directed to enter judgment accordingly.

Dated: January 4, 2013

Long Island City, NY [*8]

____________________

ROBERT J. MCDONALD

J.S.C.